AYUB KHAN Vs. STATE DELHI ADMINISTRATION

JUDGEMENT

(1.) appellant has been convicted of an offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act by a judgment dated November, 30, 1988, of an Additional Sessions Judge, Delhi, and has been sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs. 1,00,000 (one lakh) or in default of payment of fine to further undergo rigorous imprisonment for two years by a separate order of the same date. The appellant has filed this appeal in challenging his conviction and sentence.

(2.) The prosecution version, in brief, is that on July 10, 1987, the police party while patrolling the area had received a secret information on the basis of which a raiding party was organised after joining one public witness Bhagwan Dass and at about 9.30 A.M. the appellant was apprehended from the Central Park on pointing out by the secret informer and a bag was recovered from the appellant which was found to contain charas wrapped in a polythene paper and the charas was weighed and it was found to be 1.5 kgs. After taking two samples, the samples as well as the remaining charas were sealed with the seals of the S.H.O. as well as of the Investigating Officer. The case property was said to have been deposited in the Malkhana of Police Station Delhi Main Railway Station whereas the raiding party was from Police Station of New Delhi Railway Station. But the S.H.O. who was in law required to keep the case property in his safe custody had thought it fit to keep the case property in the custody of S.H.O. of another Police Station. Be that as it may, no evidence was led before the trial Court from the Malkhapa of Police Station Delhi Main Railway Station to show that the case property remained intact in the Malkhana of the said particular Police Station. The important link in the chain to show that the case property which was seized from the appellant had remained intact without being tempered with at any stage before the same was produced in court during the trial was broken inasmuch as no evidence was led by the prosecution from the Malkhana of Police Station Delhi Main Railway Station to show that the case property wa duly deposited in that Malkhana and that the samples which were sent to the Central Forensic Scientific Laboratory for analysis remained intact when they were in custody of the Malkhana Moharrir and that the case property remained intact till it was proved in the court. In the case of Kizito E.L. IBE v. C.B.I., 39(1989) Delhi Law Times 439(1), the material witness was not examined who was to establish the important link pertaining to the samples of the case property. A Single Judge of this Court held that it becomes a case where a very material witness, who besides proving the important link of the the prosecution evidence in relation to seal used on the samples parcels and other seized commodity, would have also given a lie to the defence suggestion by coming into the witness box, but he has either stayed away, or deliberately kept away. The court then held that the trial court certainly erred in holding the prosecution case proved in face of such glaring lacunae in the case. The Single Judge has placed reliance on State of Rajasthan v. Daulat Ram, AIR 1980 SC 1314(2), wherein it has been held that where all link witnesses were not examined so as to satisfy the court that the samples in the case under the Opium Act had not changed hands, or had not been tampered with, then it become a case where a lacunae was left in the prosecution case.

(3.) Similarly, in the present case by not examining Malkhana Moharrir of the Police Station where the case property was kept, the prosecution has not been able to establish the chain to prove that the case property after being seized remained intact without being tampered with throughout and particularly when it remained in that Malkhana. Hence for this short reason, it must be held that the appellant could not have been convicted of the offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act.